UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4043

SHEDDRIC L. WOODS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

John T. Copenhaver, Jr., District Judge.

(CR-97-117)

Submitted: December 8, 1998

Decided: January 20, 1999

Before ERVIN, MICHAEL, and TRAXLER,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, Brian J. Kornbrath, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, John J. Frail, Assistant

United States Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Sheddric L. Woods appeals his conviction for possession with

intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1)

(1994). Woods received a 262-month term of imprisonment. Finding

no error, we affirm.

The Government's evidence showed that Officer Scott Frame

received a radio communication regarding an assault occurring in the

1500 block of Lewis Street. Upon arriving at 1547 Lewis Street, Officer Frame was directed to a location behind 1551 Lewis Street by the

victim of the assault. The victim also provided Frame with a description of the clothing worn by each of the two suspects. When Frame

approached the designated area, he observed Woods and another

male, who matched the descriptions provided by the victim. After

Officer Frame identified himself as a police officer, Woods and the

other male fled. Frame pursued Woods on foot, and Woods was

directly in front of him. Frame observed Woods toss a red and white

cigar box to his right, in the area of some trash cans, and drop a clear

plastic bag to the ground as he accidentally fell to the sidewalk.

Woods then got up and continued running. Both Woods and the other

male were apprehended and arrested.

Officer Frame returned to the location where he had observed

Woods drop the plastic bag and recovered a small plastic bag containing several white rocks that later field-tested for cocaine base. In addition to recovering the plastic bag, Frame directed Officer Robert

Brown to the area where he had observed Woods toss a red and white

cigar box. Officer Brown recovered a red and white cigar box containing several large white rocks that later field-tested for cocaine

base.

At Woods's trial, a forensic chemist, who was qualified as an

expert in the field of controlled substance analysis, testified that he

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had analyzed the substance from the clear plastic bag and determined

that the substance was 4.32 grams of cocaine base. He also analyzed

the substance from the red and white cigar box and determined that

the box contained 21.7 grams of cocaine base. John Starcher, who

was qualified without objection as an expert on the issue of the quantities of cocaine base that are consistent with personal use and the

quantities of cocaine base that are consistent with intent to distribute,

testified that in his opinion, possession of one gram or less would be

consistent with personal use. Starcher further testified that based on

his experience and knowledge, if an individual had 26 grams of

cocaine base on his person, he intended to distribute it.

Lastly, Officer Brown testified to finding a cigar box containing

what appeared to be cocaine base in the area to which he had been

directed by Officer Frame. Brown testified that the search for the

cigar box took less than a minute, that the trash can in which it was

found was otherwise empty, and that he prepared an incident report

detailing his observations and the directions he had received from

Frame.

Woods's defense was based on two predominant themes. First,

Woods contended that Officer Frame lacked the ability to observe

him discard any drugs. While not denying that cocaine base was ultimately recovered at the scene, Woods denied that he was ever in possession of such contraband. Second, Woods claimed that even if he

was found to possess the smaller quantity of drugs found at his feet,

he did not possess the larger quantity of drugs found inside a cigar

box that was recovered from a trash can on the scene. Thus, Woods

alleged, the Government failed to prove intent to distribute beyond a

reasonable doubt.

On appeal, Woods first claims that the district court erred in failing

to find as pretextual the Government's explanation for using a

peremptory challenge to excuse the only minority on Woods's jury

panel. A district court's finding of whether a peremptory challenge

was exercised for a racially discriminatory reason is given great deference and reviewed for "clear error." Jones v. Plaster, 57 F.3d 417,

421 (4th Cir. 1995).

Woods is an African-American male. Thirty-two panel members

were available for the peremptory challenge process. During the voir

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dire examination of the jury panel, the district court inquired as to

whether or not any member of the panel had ever been convicted of

a crime. Four jury panel members, including James Crews, answered

in the affirmative. James Crews was the only African-American on

the panel.

During subsequent questioning at the bench, Crews stated that he

had been arrested for "nonsupport" in the State of Ohio in 1969.

Crews further stated that he received "a year probation and a big

fine." He also stated, "[t]hey tried to railroad me." The Government

moved to strike Crews for cause on the ground that he might be prejudiced against the prosecution because he apparently saw himself as a

victim of an unjust prosecution. The district court further inquired

whether Crews's experience would have any bearing on his ability to

serve as a fair and impartial juror, to which he responded in the negative. Thus, the Government withdrew its motion to strike for cause.

During the ensuing peremptory challenge process, the Government

excused Crews. Woods objected on the ground that the Government

had exercised its peremptory challenge based on racial discrimination.

Woods specifically noted that Crews was in a similar situation as

three other potential jurors who were all white and were involved in

the criminal justice system, but only Crews was struck. The Government stated that the primary reason for striking Crews was its belief

that Crews was biased against the Government based on his use of the

term "railroaded." The district court held that the Government provided a rational reason for striking Crews. Woods alleges that the

Government's justification for excusing Crews was pretextual

because Crews immediately clarified his remark by explaining that he

was not referring to the Government but rather to the party who

brought the "nonsupport" action against him.

A peremptory strike cannot be exercised based on race. See Batson

v. Kentucky, 476 U.S. 79, 88-89 (1986). To successfully make a

Batson challenge, a defendant must first establish a prima facie case

of racial discrimination. See United States v. Malindez, 962 F.2d 332,

333 (4th Cir. 1992). The burden then shifts to the Government to state

a race-neutral reason for the peremptory strike. See Howard v. Moore,

131 F.3d 399, 407 (4th Cir. 1997). Once this requirement is met, the

burden shifts back to the defendant to prove that the explanation

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given by the Government is merely a pretext for discrimination. See

id. at 407.

In the present case, the Government offered a race-neutral explanation for striking Crews based on its perception of Crews's potential

bias against the Government. The Government's "explanation need

not be `persuasive, or even plausible,' as long as it is neutral."

Matthews v. Evatt, 105 F.3d 907, 917 (4th Cir. 1997) (citations omitted). We find that the district court did not clearly err in finding that

the Government provided a race-neutral reason for striking Crews that

was not a pretext for racial discrimination.

Woods next claims that the trial court erred in limiting Woods's

right to cross-examine Officer Frame to establish bias by precluding

inquiry into the fact that Frame fully cooperated with the Government

but refused to speak with Woods. Limitations on a defendant's crossexamination of Government witnesses are reviewed on appeal for an

abuse of discretion. See United States v. McMillon, 14 F.3d 948,

955-56 (4th Cir. 1994).

The Government's case against Woods was based primarily on

Officer Frame's testimony. During Officer Frame's crossexamination, Woods attempted to establish that Frame was biased in

favor of the Government by showing that he cooperated with the

Government's preparation of the case but refused to speak with the

defense.

A defendant's right to cross-examine a witness is secured by the

Sixth Amendment's guarantee of the right to confront the witness

against him. See Davis v. Alaska, 415 U.S. 308, 315 (1974). A defendant is afforded an opportunity to cross-examine a witness to establish

credibility, including bias. See Fed. R. Evid. 608(b). However, the

trial court retains wide latitude to impose reasonable limitations on

cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, or interrogation that is

repetitive or only marginally relevant. See Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986).

In the present case, the requirements of the Confrontation Clause

were clearly satisfied. Woods thoroughly examined Officer Frame

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concerning his unwillingness to assist Woods in preparation for trial.

The district court allowed Woods to repeatedly question Frame about

his refusal to talk with Woods's investigator. No limitation was

imposed upon cross-examination until Woods asked Frame who subpoenaed him to trial. The Government objected to the question on relevancy grounds, and the court sustained the objection.

Despite the limitation on cross-examination, we conclude that

Woods had ample opportunity to explore Officer Frame's motivations

and biases and test his credibility. The district court, therefore, did not

abuse its discretion in limiting cross-examination. See McMillon, 14

F.3d at 955-56. Further, the district court's limitation did not violate

Woods's rights under the Sixth Amendment's Confrontation Clause.

See, e.g., United States v. Ambers, 85 F.3d 173, 176-77 (4th Cir.

1996).

Woods next claims that the district court erred in failing to find that

the Government violated the notice requirements of Fed. R. Crim. P.

16(a)(1)(E), because the Government's expert testimony that no

cocaine base user ever purchases more than one gram of cocaine base

at a time and the bases of such opinion were never previously disclosed to Woods. Decisions regarding the admission of evidence are

committed to the sound discretion of the district court and will not be

reversed absent an abuse of discretion. See United States v. Lancaster,

78 F.3d 888, 896 (4th Cir. 1996).

Under Fed. R. Crim. P. 16(a)(1)(E), the Government was required

to disclose to Woods a written summary of expert testimony that the

Government intended to use during its case-in-chief. In the discovery

provided to Woods relating to expert testimony, the Government indicated that it would present the testimony of Starcher. The discovery

further stated that the essence of Starcher's testimony would be that

the amounts and forms of cocaine base recovered from Woods and

the individual accompanying him were consistent with an intent to

distribute. Thus, Woods was given notice that Starcher would testify

regarding the element of intent to distribute as indicated by drug

quantity.

At trial, Starcher testified, in response to whether he had an opinion

about the amount of cocaine base that is consistent with personal use

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versus distribution, that personal use would be consistent with one

gram or less of cocaine base. Starcher further testified that a person

who possesses more than a gram is considered to be a distributor.

Woods cross-examined Starcher extensively trying to indicate to the

jury that a person could possess more than one gram of cocaine base

for personal use.

Woods complains that the Government's disclosure that Starcher

would testify about quantities of cocaine base that are consistent with

"an intent to distribute" did not put Woods on notice that he would

also testify about the quantity that was indicative of "personal use."

Woods alleges that the district court's decision not to sanction the

Government was prejudicial to Woods's defense because the use of

an arbitrary one gram cut-off to distinguish personal use from possession with intent to distribute cocaine base was never disclosed to

Woods prior to trial. We find that the notice was sufficient enough to

allow Woods to prepare a cross-examination. As the district court

noted, "the notice informed [Woods] that in this case where there is

one batch that is less than five grams in content and another that is

more," Starcher could possibly testify that possession of four grams

of cocaine base would indicate possession with the intent to distribute. Thus, the district court did not abuse its discretion in admitting

Starcher's testimony. See Lancaster, 78 F.3d at 896.

Woods also claims that the district court erred in allowing the Government to introduce hearsay testimony contained in Officer Brown's

incident report. We review for an abuse of discretion. See id.

During Brown's direct examination he was allowed to testify from

a police report he prepared on the day Woods was arrested. Brown

had already testified from memory to essentially the same facts. Following his testimony, Officer Brown was asked similar questions

relating to a report he had prepared, to which Woods objected. The

district court permitted Brown to answer. The report itself was not

admitted into evidence.

Woods alleges that the district court abused its discretion in allowing Brown to read from his incident report resulting in prejudicial

error. See Fed. R. Evid. 803(8). Specifically, Woods alleges that the

Government used Brown's hearsay testimony to impermissibly bol-

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ster Officer Frame's purported observations. However, even before

Brown was questioned about the incident report, he provided essentially the same testimony. Thus, even if the district court had excluded

the testimony relating to the police report, the same evidence had

already been testified to without objection. Therefore, the district

court did not abuse its discretion in admitting the testimony. See

Lancaster, 78 F.3d at 896.

Lastly, Woods claims that the district court erred in denying his

request for a continuance of his sentencing hearing so that a medical

examination could be conducted to determine whether his physical

condition qualified him for a lower sentence. The district court's decision to deny a motion for a continuance of sentencing is reviewed for

an abuse of discretion. See United States v. Speed, 53 F.3d 643, 644

(4th Cir. 1995).

Prior to Woods's scheduled sentencing hearing, he moved the district court for a continuance so that a physical examination could be

performed to determine whether his medical condition, as described

in his presentence report, would qualify him for a lower sentence.

Woods argued that the existence of a life threatening medical condition might provide grounds for a downward departure. Woods stated,

however, in response to questioning from the district court that the

district court could fairly assume that Woods suffers from the condition as it was set forth in his presentence report. Thus, the district

court denied his motion for a continuance.

Woods alleges on appeal that the district court's ruling prejudiced

him because it deprived him of the only opportunity to obtain information potentially supportive of his request for a lower sentence.

Woods contends that without the examination, he could not conclusively establish that he suffered from a life threatening condition or

that his infirmity constituted an "extraordinary physical impairment,"

which would justify a sentencing departure. See U.S. Sentencing

Guidelines Manual § 5H1.4 (1997). Because a district court has broad

discretion in scheduling sentencing proceedings, a sentence will not

be vacated because a continuance was denied absent a showing both

that the denial of a continuance was arbitrary and that it substantially

impaired the defendant's opportunity to secure a fair sentence. See

Speed, 53 F.3d at 644. We find that the district court's denial of a

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continuance in this case was neither arbitrary nor substantially

impaired Woods's opportunity to secure a fair sentence. The record

reveals that the district court was aware from the presentence report

of the nature of Woods's illness. Thus, the district court did not abuse

its discretion in denying the motion for a continuance. See id.

Accordingly, we affirm Woods's conviction and sentence. We

deny Woods's motion to substitute counsel. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED

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